ALJDEC decisions subject to certification as final

2019A-04319-CHC-ROC-RES · Registrar of Contractors · 2020-04-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Richard D. Simat,

COMPLAINANT

Dreamstyle Remodeling Inc.,

License No. ROC 260542, 323292

RESPONDENT

No. 2019A-04319-CHC-ROC-RES

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: February 13, 2020 and March 16, 2020

APPEARANCES: Richard D. Simat, Complainant; Angela Tomczak, Complainant witness; Greg Bluff, Esq., attorney for the Respondent; Mark Mill, Respondent’s General Manager for Phoenix, AZ; Steve Kline, ROC Investigator.

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson _____________________________________________________________________

FINDINGS OF FACT

On or about August 11, 2018, Richard D. Simat, Complainant [hereinafter “Simat”] and Dreamstyle Remodeling Inc., Respondent [hereinafter “Dreamstyle”] entered into a written sales agreement whereby for amounts stated in the sales agreement Dreamstyle was to construct an exterior screened cage enclosure, with no solid roof or sides, over Simat’s existing swimming pool on a new concrete slab.[hereinafter the “Screen Room”] at Simat’s residence located at 5938 E. Corrine Drive in Scottsdale, Arizona.

Dreamstyle is a duly licensed Arizona Contractor with license numbers: 260542, and 323292.

On August 26, 2019, Simat filed a written complaint with the Registrar alleging Dreamstyle performed below industry standard workmanship and abandonment.

The Complaint was referred to Registrar of Contractor’s Investigator Steve Kline. Mr. Kline, after notice to the parties, conducted a Jobsite Inspection [the “JSI”] on September 23, 2019.

On September 24, 2019, Mr. Kline issued a Written Directive to Dreamstyle that contained items directing Dreamstyle’s to make listed item’s repair on or before 5:00 pm, October 11, 2019 The Directive states:

You are directed to remedy the following violations bv the appropriate means:

Complaint Item l: entry doors are not 110 mph doors,

Complainant states 110 mph doors were promised by Respondent. Complainant to supply documentation.

Complaint item 2: Both doors have tripping hazard.

Complainant feels the threshold provided is not a proper threshold. Plans appear to show no threshold.

Complaint Item 3: No real support mounted to hold up gutter.

Gutter appears to be secure, however plans show the gutter flush with fascia with no spacer used.

Complaint item 4: Support beams held up by single metal screw.

Verified some supports attached with one screw. Plans show three and a different type of Installation.

Complaint item 5: Torn screens.

Verified numerous tom screens at beam to gutter connections, loose and wrinkled in other areas.

Complaint item 6: Spots where beams not pull together right. Open to the sky.

Verified numerous connections not installed per plan.

Complaint item 7: All support beams leaning over.

Verified several twisted beams and whole rear of the structure is wavy.

Complaint item 8: Door slanted to one side.

Verified inconsistent door reveal at back door,

Complaint item 9: Beams put together with two screws,

Verified some supports attached with one screw. Plan details show three and a different type of Installation.

Complaint item l0: Tore off drip edge on house.

Verified leaking at fascia.

Complaint Item l2: Beams cut bad (sic) so end covered up with hanging plate.

Verified most connections are not per plan.

Respondent shall complete project per original contract agreement, plans. Specifications and properly executed change orders, verbal agreements and manufacturer’s installation instructions.

ITEMS NOT REQUIRING CORRECTION: The following complaint items require no action by the Respondent:

Compliant item 1l Double door shocks mounted to floating metal. Verified attachment, nothing on plans addresses who Ir should be done

Complaint item l3: Ripped apart stucco wall. Repaired per Complainant prior to job site inspection.

By e-mail to Mr. Kline on Oct 15, 2019 at 8:58 AM, Mr. Samit stated ”The Directive due by October 11 at 5 pm was not completed by the contractor.”

On November 13, 2019 the Registrar issued a Citation against Dreamstyle alleging Dreamstyle may have violated Ariz. Rev. Stat. §32-1154(A)(3) by failing to perform its work in a professional manner and Ariz. Rev. Stat. § 32-1154(A)(22) by failing, to comply with the Directive.

This matter was referred the Office of Administrative Hearings, an independent state agency, for hearing. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint. Hearing was conducted on February 13, 2020 and Further Hearing conducted on March 16, 2020.

Investigator Kline was called by the ALJ for testimony and was cross-examined by both parties. Mr. Klein testified regarding his background, experience and expertise. Inspector Klein testified that while he has some experience in the construction industry and has taken building inspection courses, this was the first exterior screen room structure that he has ever seen or inspected. He disclosed that before his inspection in this case he had never inspected an exterior screen room project. He testified that he had no specialized training or experience regarding engineering, architectural, or other construction matters relating to exterior screen rooms. He testified that he had no actual experience regarding the construction or standards which would apply to an exterior screened room and that there were no published standards for an exterior screened room.

Audio Transcript of hearing, Day 1 at 01:58:19, et seq.

ALJ Wolfson : “And I'm not asking for your opinion. I'm asking what the standard is. A standard is never going to be your opinion. It's going to be a regulation or statute. However, you just testified that because there isn't, or there haven't been, ROC standards created with respect to exterior screened structures, that there isn't a workmanship standard you could point to. Am I getting that right?

ALJ Wolfson : I got that right. All right, so are you now saying that the testimony you just provided in response to the complainant's question of you...you are changing your testimony now to indicate that there aren't any written workmanship standards applying to this case, but you have your own opinion?

Inspector Klein: Yes.

ALJ Wolfson : Okay. Is there a requirement in the registrar of contractors' workmanship standards regarding requirements to build out according to plans, or if they have to build according to the plans, that you're aware of?

Inspector Klein: How can I say this?

ALJ Wolfson : Yes or no?

Inspector Klein: There's a violation, which I didn't write down on here, for not meeting plan specifications and building codes.

It was undisputed during the hearing that Dreamstyle had the structure inspected by the City after the work was performed and that the structure passed inspection. See Exhibit R-11. .Upon questioning, Inspector Klein testified that the structure was safe for occupancy. In answers to another line of questions, Investigator Kline agreed that his Work Directive was vague, ambiguous, and lacked specificity and clarity as to exactly what he intended Dreamstyle to correct. He stated “I wasn’t clear enough in writing up my directive.”

Audio Transcript, Day 2 at 00:35:35.

Guy Bluff: 00:52:53 “Would you agree with me that you need to be specific in terms of what work you...”

Inspector Klein: 00:52:59 “I do.”

Guy Bluff: 00:52:59 “And that your work directive is not specific?”

Inspector Klein: 00:53:03 “Right, it is not.”...

Audio Transcript of Hearing, Day 2, at 01:17:32

Guy Bluff: Hearing Day 2, at 01:17:32 “Would you agree with me that, in creating your work directive, for the contractor, that you need to be specific as to which elements, especially when there are a lot, either by attaching photographs or specifying a particular connection detail from the plans, that you had available to you, to show the contractor which connection detail you wanted fixed?”

Inspector Klein: “No, I just said do it per plan.”

Guy Bluff: “Does your work directive, make clear what you were expecting the contractor to do?”

Inspector Klein: “Just do it per plan.”

Guy Bluff: Okay. “Does it make clear which plan detail or what plan sheet you wanted the contractor to comply with?”

Inspector Klein: “No, not specifically.”

Guy Bluff: 00:32:40 “Okay. So if you can't tell me what items you were intending the contractor to fix, and it's not clear from the plans and the photographs that you took, how were you expecting the contractor to know which items to fix?”

Inspector Klein: “Well, I guess I was hoping he would have contacted me and we could have walked the job together.”

Dreamstyle Representative Mark Miller testified that following receipt of the Work Directive, he contacted Inspector Klein to seek clarification but that none was forthcoming.

The parties painstakingly examined each of the numbered items in the directive.

Complaint Item l: entry doors are not 110 mph doors, Complainant states 110 mph doors were promised by Respondent. Complainant to supply documentation. Inspector Klein stated that he was never provided with information from Complainant that states the screen doors be 140 mile per hour rated. ALJ Finding: It is undisputed that neither the plans nor the written agreement of the parties indicate that a 110 mph door was to be installed. Thus, the door at issue is beyond the scope of Dreamstyle’s agreement.

Complaint item 2: Both doors have tripping hazard. The project’s Plans show no threshold. Inspector Klein testified that the Work Directive was ambiguous and vague as to what he was expecting Dreamstyle to perform regarding the door threshold. Inspector Klein testified that while door thresholds are typically installed in doors, he was expecting the contractor to remove the threshold. Inspector Klein testified that the Work Directive itself did not specify that instruction. ALJ Finding: There is no evidence presented supporting the contention that the threshold was a tripping hazard. The Directive did not require Dreamstyle to perform any corrective work on this Complaint item.

Complaint Item 3: No real support mounted to hold up gutter. Gutter appears to be secure, however plans show the gutter flush with fascia with no spacer used. Inspector Klein testified that, while he wrote in his directive “No real support mounted to hold up gutter,” the gutter did in fact appear to him to be secure. [Audio Transcription, Day 1 at 00:50:29; [Audio Transcription, Day 1 at 03:02:03, “I felt it was secure. Inspector Klein testified that his work directive “didn’t make it clear” as to what he was expecting Dreamstyle to actually correct. Day 2 [Audio Transcription, at 00:25:25]. ALJ Finding: The gutter installation was in conformance with industry standards.

Complaint item 4: Support beams held up by single metal screw. Verified some supports attached with one screw. Plans show three and a different type of Installation. Inspector Klein testified that he could not tell, and did not verify if there were any interior support brackets and additional screws in any of the members. He agreed that his Work Directive did not specify and at hearing he could not testify which of the numerous connections he directed Dreamstyle to correct. He stated that no compliance inspection had been conducted and was therefore unable to whether there was compliance with the Directive. ALJ Findings: There are no ROC workmanship standards which govern the construction of exterior screen metal, lanai or sunroom structures. The gutter support installation was in general conformance with industry standard.

Complaint item 5: Torn screens. Verified numerous tom screens at beam to gutter connections, loose and wrinkled in other areas. Inspector Kline was unable to testify as to whether or not that the specific tear alleged to have existed at the JSI had been repaired or if any other tears had been repaired. Mr. Kline only testified that there were tears. He agreed he did not conduct a compliance inspection and therefore could not testify if the original tears had been corrected or not:

Audio Transcription, day 1 at 03:08:39, et seq.

Guy Bluff: Okay. You have no independent knowledge as to whether or not the contractor ...did fix this back in October, and that the tears that you have just recently observed may be new tears caused by a haboob.

Inspector Klein: It's possible, dust storm.

Guy Bluff: Tears in the screening fabric, is that always a workmanship issue? Just yes or no.

Inspector Klein: No. It becomes maintenance.

Guy Bluff: And when you went back and did[the pre-hearing] site inspection where you were able to verify, in your own mind, whether or not the original torn screens that you wanted were repaired by the contractor, or whether there were new torn screens?

Inspector Klein: They could have been new.

Guy Bluff: They could have been new. So you don’t know one way or another?

Inspector Klein: No.

Guy Bluff: You agree with me? You do not know one way or another?

Inspector Klein: I agree with you.

Dreamstyle representative, Mark Miller, testified that the original torn screens had been corrected:

Guy Bluff: There was a complaint that there were torn screens. The torn screens, were they corrected?

Mark Miller: Yes, they were.

ALJ Finding: From the credible evidence submitted, neither the screen tears nor installation of the screens were below general industry standards for workmanship nor did Dreamstyle fail to timely comply with the Directive.

Complaint item 6: Spots where beams not pull together right. Open to the sky. Inspector Klein not able testify as to any specific beam not constructed in accordance with the project drawings. While he was directing Dreamstyle to build it “according to the plan,” Investigator Kline was not able at hearing to identify which “plan” or detail that Dreamstyle was directed to comply with in the Directive.

Audio Transcription day 1 at 00:34:29, et seq.

Guy Bluff: I'm just reading it. Now, here's my question. You have in front of you the plans, and you have in front of you the photographs that you took and I want you to identify, specifically for me, which spots were the beams not put together, or which spots did you verify numerous connections not installed per plan?

Inspector Klein: I don't remember.

Guy Bluff: So we sit here today with the plans and your photographs, you can't point out to me which connections you wanted that were not installed per plan?

Inspector Klein: No, I can't.

Guy Bluff: [at 00:39:05] so it is shown on the plans be constructed that way according to photograph 147. What plan detail, what connection did...

Inspector Klein: I told you I don't see the detail, I don't see detail when you're showing that.

Guy Bluff: If there's no detail showing it, then what were you directing the contractor to do?

Inspector Klein: To do the job per plan.

Guy Bluff: Look, show me the plan.

Inspector Klein: I know I can't sir, I'm sorry. You've asked me ten times, I said I can't.

ALJ Findings: The credible evidence presented does not support a finding that Dreamstyle’s workmanship was below standard nor that Dreamstyle failed to timely comply with the Directive.

Complaint item 7: All support beams leaning over. Verified several twisted beams and whole rear of the structure is wavy. Inspector Klein cited to no actual ROC standard in support of his workmanship violation contentions regarding this Complaint item.

Audio Transcription Day 1 at 01:00:09, et seq.

Guy Bluff: Is there a written standard by the registrar regarding the allowable tolerance for twisted twisty-ness in metal beams, yes or no?

Inspector Klein: No, there isn't. There's a lot of things in there that aren't mentioned.

Inspector Klein testified that he did not take any measurements. “I didn’t measure every single one of them, all I did was just look at it and tell it was very wavy,” [Audio Transcription day 1 at 01:00:46, et seq]. In addition, Inspector Klein stated he did not measure how far out of plum (or straightness) the screen was. Ibid. Moreover, he did not run a string line to determine the “straightness”.Id. Inspector Klein did testify however, that for a typical structure, the allowable tolerance would be 1⁄2” in twelve (12) feet. Id.

Dreamstyle’s Representative, Mark Miller, testified that there is an allowable standard in his industry for “straightness” of screen rooms – 1 1⁄2” over 20 feet. Mr. Miller testified that the work by Dreamstyle on this project met industry standards.

Audio Transcription Day 1 at 02:37:33

Guy Bluff: Okay. So as drawn, it's not intended to be straight?

Mark Miller: It was never intended to be perfectly straight. The structure is approximately 60’ wide. .

Guy Bluff: Based on your knowledge of the industry for sunroom construction and in particular this appendix H, does this sun room in terms of the waviness of the wall meet industry standard?

Mark Miller: Yes. Its 60 foot long, I believe. Let me see. I believe its 59 or 60 feet. 59 feet, yes.

Guy Bluff: And the variance of an inch and a half, is that over a specified distance?

Mark Miller::12 It's over a 20 foot distance.

Guy Bluff: That there can be an inch and a half in 20 feet?

Mark Miller: Yes.

Guy Bluff: So up to, I would assume then, four and a half inches in 60 feet?

Mark Miller: Yes.

Guy Bluff: As constructed, does any portion of this wall exceed the allowable industry standard tolerance?

Mark Miller: It does not. It stays within the industry standards. It was never intended to be perfectly straight.

ALJ Findings: The credible evidence presented does not support a finding that Dreamstyle’s workmanship was below standard nor that Dreamstyle failed to timely comply with the Directive nor that Dreamstyle failed to timely comply with the Directive.

Complaint item 8: Door slanted to one side. Verified inconsistent door reveal at back door. Inspector Klein testified that there is no workmanship standard applicable to the reveal for a screen door. He also testified that this work (correcting the reveal) had been completed ty Dreamstyle. Mr. Miller also testified that the back screen door reveal was corrected. ALJ Findings: The evidence presented does not support a finding that Dreamstyle’s workmanship was below standard nor that Dreamstyle failed to timely comply with the Directive.

Complaint item 9: Beams put together with two screws, Verified some supports attached with one screw. Plan details show three and a different type of Installation. At hearing, Mr. Kline was not able to point out from the numerous photos admitted into evidence any of the beams where he asserted only had two screws. Mr. Miller explained that some of the beams have interior screw placements which can’t be seen without examining the interior of the beam. Mr. Kline admits he did not inspect any beam interior.

ALJ Findings: The credible evidence presented does not support a finding that Dreamstyle’s workmanship was below standard nor that Dreamstyle failed to timely comply with the Directive.

Complaint item l0: Tore off drip edge on house... leaking at fascia. Inspector Klein testified that he did not conduct a Compliance Inspection in this case, although he did conduct a pre-hearing inspection, At hearing Mr. Kline confirmed that he has never personally verified if this item had been corrected during the pre-hearing inspection.

Audio Transcription Day 1 at 01:20:07 Item number 10,

Guy Bluff: [re: “Tore off drip edge on house. - leaking at fascia fix."] Did the contractor fix this item?

Inspector Klein: 01:20:16 I don't know. It was... We didn't water

test it when I went out there the second time. So it's possible.

Inspector Klein: 01:20:47 I think, the homeowner told me it was

still leaking. I didn't test it though.

Guy Bluff: 01:20:51 But you didn't verify?

Inspector Klein: 01:20:53 No.

Mark Miller testified “[t]he Drip edge was fixed and it was fixed correctly. Mr. Miller’s testimony on this issue is uncontroverted in the evidence. ALJ Findings: The credible evidence presented does not support a finding that Dreamstyle’s workmanship was below standard nor does it support Dreamstyle’s failure to timely comply with the Directive.

Complaint Item l2: Beams cut bad so end covered up with hanging plate...most connections are not per plan. Inspector Klein was anything but clear as to what he was directing Dreamstyle to do as related to this complaint item and more specifically whether it was “corrected” as required by the Work Directive.

Audio Transcription Day 1 at 01:28:55

Guy Bluff: Does your work directive, make clear what you were expecting the contractor to do?

Inspector Klein: Just do it per plan.

Guy Bluff: Okay. Does it make clear which plan detail or what plan sheet you wanted the contractor to comply with?

Inspector Klein: 01:29:10 No, not specifically.

Guy Bluff: Okay. When you went back out, did you take any new photographs?

Inspector Klein: 01:29:21 No.

Guy Bluff: Okay, so we can't see what was corrected or what was not.

Inspector Klein: Right.

ALJ Findings: The credible evidence presented does not support a finding that Dreamstyle’s workmanship was below standard nor Dreamstyle’s failure to timely comply with the Directive.

CONCLUSIONS OF LAW

Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G) (2).

“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3).

A preponderance of the evidence is:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

There was no substantial evidence adduced to show that Dreamstyle is unscrupulous, unqualified, or financially irresponsible.

Ariz. Rev. Stat. section 32-1154(A) provides that

The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:

....

3. Violation of any rule adopted by the registrar.

....

22. Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional manner.” A “workmanlike manner” means doing work in an ordinarily skilled manner as skilled workman should do it. J. W. Hancock Enterprises, Inc. v. Registrar of Contractors, 126 Ariz. 511, 514, 617 P.2d 19, 22 (1980).

Dreamstyle’s work was not required to perfect, but for construction to be done in a

good and workmanlike manner.

The preponderance of the evidence does not show that Dreamstyle violated Ariz. Rev. Stat. section 32-1154(A)(3) by failing to perform its work in a professional manner. The evidence of record shows there was no benchmark or standard to which the exterior screened pool enclosure could be compared to determine whether it was within accepted tolerances.

There are no findings in this case demonstrating with credible evidence that Dreamstyle violated ROC workmanship standards. The preponderance of the evidence does not show that Dreamstyle violated Ariz. Rev. Stat. section 32-154(A)(22) by failing to timely comply with the Directive.

Considering the facts and circumstances of this matter, the Citation should be dismissed.

RECOMMENDED ORDER

IT IS RECOMMENDED THAT

The Registrar order the Citation in Case No. 2019A-04319-CHC-ROC-ROC against Dreamstyle Remodeling Inc., License Numbers. ROC 260542 and, 323292 be dismissed.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order is forty days after the date of that certification.

Done this day, April 3, 2020.

/s/ Randolph D. Wolfson

Administrative Law Judge Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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